1. The Definition of “arrest”.

Citizen’s Arrests are governed by Section 42 and 49 of the Criminal Procedure Act:

42 ARREST BY PRIVATE PERSON WITHOUT A WARRANT

(1) Any private person may without warrant arrest any person 

(a)  who commits or attempts to commit in his presence or whom he reasonably
suspects of having committed an offence referred to in Schedule 1;

(b)  whom he reasonably believes to have committed any offence and to be escaping from and to be freshly pursued by a person whom such private person reasonably believes to have authority to arrest that person for that offence;

(c)  whom he is by any law authorised to arrest without warrant in respect of any offence specified in that law;

(d)  whom he sees engaged in an affray. 

(2) Any private person who may without warrant arrest any person under subsection (1) (a) may forthwith pursue that person, and any other private person to whom the purpose of the pursuit has been made known, may join and assist therein. 

(3) The owner, lawful occupier or person in charge of property on or in respect of which any person is found committing any offence, and any person authorised thereto by such owner, occupier or person in charge, may without warrant arrest the person so found. 

49 Use of force in effecting arrest

(1) For the purposes of this section—

(a) “arrestor” means any person authorised under this Act to arrest or to assist in arresting a suspect;

(b) “suspect” means any person in respect of whom an arrestor has a reasonable suspicion that such person is committing or has committed an offence; and

(c) “deadly force” means force that is likely to cause serious bodily harm or death and includes, but is not limited to, shooting at a suspect with a firearm.

(2) If any arrestor attempts to arrest a suspect and the suspect resists the attempt, or flees, or resists the attempt and flees, when it is clear that an attempt to arrest him or her is being made, and the suspect cannot be arrested without the use of force, the arrestor may, in order to effect the arrest, use such force as may be reasonably necessary and proportional in the circumstances to overcome the resistance or to prevent the suspect from fleeing, but, in addition to the requirement that the force must be reasonably necessary and proportional in the circumstances, the arrestor may use deadly force only if—

(a) the suspect poses a threat of serious violence to the arrestor or any other person; or

(b) the suspect is suspected on reasonable grounds of having committed a crime involving the infliction or threatened infliction of serious bodily harm and there are no other reasonable means of effecting the arrest, whether at that time or later.

Before we consider whether you can arrest people, let’s consider what arrest means when we talk about a citizen’s arrest.

Arrest means the deprivation of someone’s freedom of movement with the intention of having that person charged by the State for committing the offence. It is of vital importance to understand before you decide that a suspect can be arrested, that you must have a very strong suspicion that the suspect actually committed, or is attempting to commit the offence. A vague suspicion is not sufficient. In the matter of S v Martinus in 1990, the situations was described quite elegantly: 

‘The power conferred on a private citizen to arrest without a warrant should be exercised sparingly and with great circumspection. The use of a firearm in an attempt to effect such arrest should be resorted to with even greater caution.’ 

You may arrest a suspect according to Section 42(1) for committing or attempting to commit a schedule 1 offence, which includes:

• Treason
• Sedition
• Public violence
• Murder
• Culpable homicide
• Rape or compelled rape
• Sexual assault, compelled sexual assault or compelled self-sexual assault
• Any sexual offence against a child or a person who is mentally disabled
• Trafficking in persons
• Bestiality
• Robbery
• Kidnapping
• Child stealing
• Assault, when a dangerous wound is inflicted
• Arson
• Malicious injury to property
• Breaking or entering any premises, whether under the common law or a statutory provision, with intent to commit an offence
• Theft, whether under the common law or a statutory provision
• Receiving stolen property knowing it to have been stolen
• Fraud
• Forgery or uttering a forged document knowing it to have been forged
• Offences relating to the coinage
• Any offence, except the offence of escaping from lawful custody in circumstances other than the circumstances referred to immediately hereunder, the punishment wherefor may be a period of imprisonment exceeding six months without the option of a fine
• Escaping from lawful custody, where the person concerned is in such custody in respect of any offence referred to in this Schedule or is in such custody in respect of the offence of escaping from lawful custody
• Any conspiracy, incitement or attempt to commit any offence referred to in this Schedule
• Any person who- commits torture; attempts to commit torture; or-incites, instigates, commands or procures any person to commit torture, is guilty of the offence of torture and is on conviction liable to imprisonment, including imprisonment for life
• Any person who participates in torture, or who conspires with a public official to aid or procure the commission of or to commit torture, is guilty of the offence of torture and is on conviction liable to imprisonment, including imprisonment for life.

Consider then the following when you see someone you suspect of attempting to commit one of the above offences: Are you certain enough that if you arrest this person, is there enough evidence that the person committed the offence that the State might actually charge this person for the offence. 

Always keep in mind that you, as a citizen, may also be sued by the suspect for wrongful arrest and you may be held liable for the arrest. The South African laws also prohibits citizens from taking the law into their own hands, and if it is possible for you to call the Police, or call upon your private security firm to rather arrest the suspect- do so. It keeps you out of danger for unnecessary litigation and liability. Citizen’s arrest should be used only as a last resort. 

All of the above discussion relates to you voluntarily deciding to arrest the suspect. It bears reminding that when a Police Official, while pursuing a suspect may call upon you (if you are a man) to assist with the arrest, and you have to assist with the arrest.